Exhibit
10.10


 


Agreement Number:                


 


AGREEMENT


 


between


 


Fiserv Solutions, Inc.


255 Fiserv Drive


Brookfield,
WI  53045-5815


 


and


 


Coastal Carolina
National Bank, In organization


2305 North Oak
Street


Myrtle Beach, SC


 


 





 


 


Master 2008


 

















 


AMENDMENT
NO. 1 TO AGREEMENT


 


AMENDMENT NO. 1 dated as of July 21, 2008 (“Amendment”)
between Fiserv Solutions, Inc., a Wisconsin corporation (“Fiserv”), and
Coastal Carolina National Bank, a proposed National Bank, with offices located
at 2305 North Oak Street, Myrtle Beach, SC (“Client”), to the Agreement dated July 21,
2008 between Fiserv and Client (as amended through the date hereof, the “Agreement”).


 


WHEREAS, Fiserv and Client entered into the Agreement
for Fiserv’s provision of outsource services to Client; and


 


WHEREAS, Fiserv and Client wish to amend the Agreement.


 


NOW, THEREFORE, Fiserv and Client hereby agree as
follows:


 


1.                                       Defined
Terms.  Unless otherwise defined
herein, capitalized terms used herein shall have the same meanings assigned
them in the Agreement.


 


2.                                       Special
Termination.  The following new Section 9(g) is
hereby added to the Agreement:


 


(g)  Special
Termination.  If Client does not receive all required regulatory
approvals to commence banking operations, or does not meet its initial capital
requirements, this Agreement shall be terminated upon written notice from
Client to Fiserv.  Client shall not be
required to pay termination fees to Fiserv; provided, however, that Client
shall compensate Fiserv for all fees, costs and other expenses (including
without limitation travel, out-of-pocket, telecommunication and third party
costs incurred by Fiserv) associated with Fiserv’s efforts to prepare for and
implement Client on the Fiserv Services.


 


3.                                       Amendment.  This Amendment is intended to be a
modification of the Agreement.  Except as
expressly modified herein, the Agreement shall remain in full force and
effect.  In the event of a conflict
between the terms of this Amendment and the Agreement, this Amendment shall
control.


 


IN WITNESS WHEREOF, the
parties have caused this Amendment to be executed by their duly authorized
representatives as of the date indicated below.


 


	
  For Client:

  	
   

  	
  For Fiserv:

  
	
   

  	
   

  	
   

  
	
  Coastal
  Carolina National Bank, In Organization

  	
   

  	
  FISERV SOLUTIONS, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
  By:

  	
   

  
	
  Name:

  	
  Ms. Holly
  Schreiber

  	
   

  	
  Name:

  	
  Jerry C. Tull

  
	
  Title:

  	
  CFO

  	
   

  	
  Title:

  	
  EVP – ITI
  Outsourcing, Southeast Region

  
	
  Date:

  	
   

  	
   

  	
  Date:

  	
   

  
									



 


	
  Coastal Carolina
  National Bank, In Organization

  	
   

  



 


2

















 


MASTER AGREEMENT


 


MASTER AGREEMENT (“Agreement”) dated as of July 21,
2008 (“Effective Date”)
between Fiserv Solutions, Inc., a Wisconsin corporation with offices
located at 5335 Triangle Parkway, Norcross, GA 
30092 (“Fiserv”),
and Coastal Carolina National Bank, In organization, a Proposed National Bank
with offices located at 2305 North Oak Street, Myrtle Beach, SC (“Client”).


 


Fiserv and Client hereby
agree as follows:


 


1.  Fiserv Services.  Fiserv, itself and through its affiliates,
agrees to provide Client, and Client agrees to obtain from Fiserv the services
(“Services”) and products (“Products”) (collectively, “Fiserv Services”) described in the
attached Exhibits.  Exhibits attached as
of the Effective Date are listed below. 
The Exhibits set forth specific terms and conditions applicable to the
Services and/or Products.  The parties
may add services and products to this Agreement by signing an appropriate Exhibit to
this Agreement.


 


Exhibit A
– Account Processing Services


Exhibit B – Item
Processing Services


Exhibit C – Signature
Debit Services


Exhibit D – Core
Provider Questionnaire


Exhibit E – Final
Proposal


Exhibit H – Disaster
Recovery Services


Exhibit O –
E-Commerce Services


Exhibit Z –  Item Processing Clearing Services


 


2.  Fees for Fiserv Services.  (a) General.  Client agrees to pay Fiserv all of the
following (collectively, “Fees”):


 


(i) Estimated fees
(unless otherwise set forth in the Exhibits) for Fiserv Services for the
following month as specified in the Exhibits. Fiserv shall timely reconcile
estimated fees paid by Client for Fiserv Services against the fees and charges
actually due Fiserv based on Client’s actual use of Fiserv Services for such
month.  Fiserv shall either issue a
credit to Client or provide Client with an invoice for any additional fees or
other charges owed.  Fiserv may change
the estimated amount of fees billed as appropriate to reflect changes in actual
use of Fiserv Services.


 


(ii) Out-of-pocket
and other additional charges for the month pursuant to Section 2(b).


 


(iii) Taxes as
defined in Section 2(c).


 


Fees
may be increased from time to time as set forth in the Exhibits.  Fiserv may increase its fees in excess of
amounts listed in the Exhibits in the event that Fiserv implements major system
enhancements to comply with changes in law, government regulation, or industry
practices.


 


(b) Additional
Charges.  Fees for out-of-pocket
expenses, such as telephone, microfiche, courier, and other charges reasonably
incurred by Fiserv for goods or services obtained by Fiserv on Client’s behalf
shall be billed to Client at cost plus the applicable Fiserv administrative
fee, if any, set forth in the Exhibits. 
Such out-of-pocket expenses may be changed from time to time upon
notification of a fee change from a vendor/provider, and, as applicable, shall
be incurred in accordance with Fiserv’s then-current corporate travel and
expense policy.


 


(c) Taxes.  Fiserv shall add to each invoice any sales,
use, excise, value added, and other taxes and duties however designated that
are levied by any taxing authority relating to the Fiserv Services (“Taxes”).  In no event shall Taxes include taxes based
upon Fiserv’s net income.


 


(d) Payment Terms.  Fees are due and payable monthly upon receipt
of invoice.  Client shall pay Fiserv
through the Automated Clearing House unless otherwise set forth in the
Exhibits.  In the event any invoiced
amounts remain unpaid 30 days after payment is due, Client shall pay a monthly
late charge of the lesser of 1.5% or the highest amount allowed by law.  Client shall neither make nor assert any
right of deduction or set-off from Fees invoiced for Fiserv Services, except as
specifically provided herein.  If Client
disputes any invoice item, Client shall provide written notice to Fiserv within
15 days of the invoice date specifying in detail the nature of the
disagreement.


 


3.  Confidentiality and Ownership.  (a) Definitions.


 


(i) “Client Information” means the following
types of information provided to or accessed by Fiserv in connection with this
Agreement:  (A) confidential plans,
information, and other proprietary material of Client that is marked with a
restrictive legend, or if not so marked or is disclosed orally, is identified
as confidential at the time of disclosure (and written confirmation thereof is
promptly provided to Fiserv); (B) customer lists and any information and
data concerning the business and financial records of Client’s customers
prepared by or for Fiserv, or used in any way by Fiserv in connection with the
provision of Fiserv Services (whether or not any such information is marked
with a restrictive legend); and (C) any information and data received from
Client that Fiserv reasonably ought to know is 


 


3

















 


confidential (whether or
not any such information is marked with a restrictive legend).


 


(ii) “Fiserv Information” means the following
types of information provided to or accessed by Client in connection with this
Agreement: (A) confidential plans, information, research, development,
trade secrets, business affairs (including that of any Fiserv client, supplier,
or affiliate), and other proprietary material of Fiserv that is marked with a
restrictive legend, or if not so marked or is disclosed orally, is identified
as confidential at the time of disclosure (and written confirmation thereof is
promptly provided to Client); (B) Fiserv’s information security plans,
business continuity plans, proprietary computer programs (including custom
software modifications, software documentation, databases, and training aids,
and all data, code, techniques, algorithms, methods, logic, architecture, and
designs embodied or incorporated therein), all copyrights, patent rights,
trademark rights and other proprietary rights which form part of the Fiserv
Services, and the terms and conditions of this Agreement (whether or not any
such information is marked with a restrictive legend); and (C) any
information and data received from Fiserv that Client reasonably ought to know
is confidential (whether or not any such information is marked with a restrictive
legend).


 


(iii) “Information” means Client Information
and Fiserv Information.  No obligation of
confidentiality applies to any Information that the receiving party (“Recipient”) (A) already possesses
without obligation of confidentiality; (B) develops independently; or (C) rightfully
receives without obligation of confidentiality from a third party.  No obligation of confidentiality applies to
any Information that is, or becomes, publicly available without breach of this
Agreement.


 


(b) Obligations.  Recipient agrees to hold as confidential all
Information it receives from the disclosing party (“Discloser”).  All Information shall remain the property of
Discloser or its suppliers and licensors. 
Recipient will use the same care and discretion to avoid disclosure of
Information as it uses with its own similar information that it does not wish
disclosed, but in no event less than a reasonable standard of care.  Recipient may only use Information in
accordance with the purpose of this Agreement. 
Fiserv specifically agrees that it will not use or disclose any
non-public personal information about Client’s customers in any manner
prohibited by Title V of the Gramm-Leach-Bliley Act or the regulations issued
thereunder (“GLB”).  Recipient may disclose Information to: (i) its
employees and employees of permitted subcontractors and affiliates who have a
need to know; and (ii) any other party with Discloser’s prior written
consent.  Before disclosure to any of the
above parties, Recipient will have a written agreement with such party
sufficient to require that party to treat Information in accordance with this
Agreement.  Recipient may disclose
Information to the extent required by law. 
However, Recipient agrees to give Discloser prompt notice, if legally
permissible, so that Discloser may seek a protective order.  At Recipient’s option, Information will be
returned to Discloser or destroyed (except as may be contained in back-up files
created in the ordinary course of business that are recycled in the ordinary course
of business over a 30- to 90-day period or such longer period as required by
applicable law) at the termination or expiration of this Agreement and, upon
Discloser’s request, Recipient will certify to Discloser in writing that it has
complied with the requirements of this sentence.  The provisions of this sub-section survive
any termination or expiration of this Agreement.


 


(c) Residuals.  Nothing contained in this Agreement shall
restrict Recipient from the use in its business of any ideas, concepts,
know-how, or techniques contained in Information that are related to Recipient’s
business activities and retained in the unaided memory of Recipient’s
employees.


 


(d) Fiserv System
and Client Systems.  Fiserv systems
used in the delivery of Services (the “Fiserv
System”) and Client’s networks and computer systems (“Client Systems”) contain information
and computer software that are proprietary and confidential information of the
respective parties, their suppliers, and licensors.  Each party agrees not to attempt to
circumvent the devices employed by the other party to prevent unauthorized
access thereto, including, but not limited to, alterations, decompiling,
disassembling, modifications, and reverse engineering thereof.


 


(e)  Ownership.  With the exception of Client Information, all
information, reports, studies, object or source code, flow charts, diagrams,
and other tangible or intangible material of any nature whatsoever produced by
Fiserv or jointly with Client or by any of their employees or agents, through
or as a result of or related to any of the Services performed or Products
provided hereunder, shall be the sole and exclusive property of Fiserv or its
corporate parent.  Client shall execute
documents reasonably required by Fiserv to perfect such rights.  Client shall be entitled to use all such work
product in accordance with the terms and conditions of this Agreement.


 


(f)  Restrictions.  Without limiting any other obligation set
forth in this Section 3, Client shall not use, transfer, distribute,
interface, integrate, or dispose of any information or content contained in
Fiserv Services in any manner that could compete with the business of
Fiserv.  Client shall not: (i) use
the Fiserv Services to provide services to third parties; or (ii) reproduce,
republish or offer any part of the Fiserv Services (or compilations based on
any part of the Fiserv Services) for sale or distribution in any form, over or
through


 


4

















 


any medium, without the
prior written consent of Fiserv.  In like
manner, Fiserv shall not use, transfer, distribute, interface, integrate, or
dispose of any information or content contained in Client’s information in any
manner that could compete with the business of Client.  Fiserv shall not: (i) use the Client
information to provide services to third parties; or (ii) reproduce,
republish or offer any part of the Fiserv Services (or compilations based on
any part of the Client’s information) for sale or distribution in any form,
over or through any medium, without the prior written consent of Client.


 


4.  Information Security.  (a) General.  Fiserv has implemented and shall maintain
appropriate measures designed to meet the objectives of the applicable
guidelines establishing information security standards as adopted by any
federal regulatory agencies having jurisdiction over Client’s affairs (“Guidelines”). These measures include
appropriate disposal of consumer information as required, and taking
appropriate actions to address incidents of unauthorized access to Client’s
sensitive customer information, including notification to Client as soon as
possible of any such incident.  Without
limiting the foregoing, Fiserv’s information security program is designed to: (i) ensure
the security and confidentiality of customer information; (ii) protect
against any anticipated threats or hazards to the security or integrity of such
information; and (iii) protect against unauthorized access to or use of
such information that could result in substantial harm or inconvenience to any
customer.  Upon Client’s written request,
Fiserv shall provide Client with copies of any associated audit reports,
summaries of test results or equivalent measures taken by Fiserv to ensure that
its information security program meets the objectives of the Guidelines.


 


(b) Client
Requirements.  As mutually agreed and
at Client’s expense, Fiserv shall make commercially reasonable modifications to
its information security program to conform to Client’s information security
requirements, as they exist from time to time.


 


(c) Fiserv Plan.  Within 30 days of Client’s written request,
Fiserv shall provide to Client a summary copy of Fiserv’s written information
security plan, and thereafter upon Client’s request will provide updates on the
status of its information security plan.


 


(d)  Security
Testing.  Fiserv may use a third
party to provide monitoring, penetration and intrusion testing with respect to
certain Services.  Upon Client’s written
request, Fiserv agrees to provide Client with a copy of its most recent
security certification, if any, for the applicable Fiserv service center
providing such Services.


 


(e)  Client
Notification.  Client agrees that it
shall notify Fiserv as soon as possible upon becoming aware of any incident of
unauthorized access to any Information or the Fiserv System.


 


(f)  Data
Encryption.  Client agrees to comply
with Fiserv’s then-current data encryption policies and controls regarding
transmission to and from Fiserv of tapes, images, Client Files as defined in Section 6(a),
or other data in connection with the Fiserv Services (collectively, “Data”). 
If Client requests or requires Fiserv to send, transmit, or otherwise
deliver Data to Client or any third party in any manner not in compliance with
such policies and controls, then, notwithstanding any other provision of this
Agreement:  (i) Client understands
and accepts all risk of transmitting Data in an unencrypted or otherwise
noncompliant format; (ii) Client releases and discharges Fiserv and its
employees, officers, directors, agents, and affiliates from any and all
liability, damage, or other loss under this Agreement or otherwise
(collectively, “Loss”)
suffered by or through Client arising out of the transmission, destruction, or
loss of such Data, including without limitation any information security or
privacy breach related to such Data; and (iii) Client shall indemnify and
hold harmless Fiserv and its employees, officers, directors, agents, and
affiliates from any Loss suffered by any of them arising out of the
transmission, destruction, or loss of such Data, including without limitation
any information security or privacy breach related to such Data.


 


5.  Hiring and Employment. (a) Background
Checks.  Fiserv shall not knowingly
permit any Fiserv employee to have access to the premises, records or data of
Client when such employee: (i) uses drugs illegally; or (ii) has been
convicted of a crime in connection with a dishonest act or a breach of trust,
as set forth in Section 19 of the Federal Deposit Insurance Act, 12 U.S.C.
1829(a).  Consistent with Fiserv’s
employment practices, newly hired Fiserv employees: (x) as from 1996, are
required to pass a pre-employment criminal background check; and (y) as
from 1993, are required to pass a pre-employment drug screening.  Upon Client’s reasonable request and at its
expense, Fiserv agrees to perform additional reasonable background checks on
those of Fiserv’s employees who will have access to Client facilities or Client
Systems located at Client facilities. 
The results of all such background checks shall be retained solely by
Fiserv.


 


(b)  Equal
Employment.  Each party agrees that
it shall not discriminate against any employee or applicant for employment
because of race, creed, color, age, sex, national origin, marital status,
liability for service in the armed forces, disability due to veteran status,
status as veteran of the Vietnam era, or the handicapped, and it shall comply
with all applicable requirements of the Equal Opportunity Clause set forth in
Executive Order 11246, as amended, and its implementing instructions, as well
as the Rehabilitation Act of 


 


5

















 


1973 and the Vietnam Era
Veterans’ Readjustment Assistance Act of 1974.


 


6.  Regulatory Agencies, Regulations and Legal
Requirements.  (a) Client
Files.  Records maintained and
produced for Client (“Client Files”)
may be subject to examination by such Federal, State, or other governmental
regulatory agencies as may have jurisdiction over Client’s business to the same
extent as such records would be subject if maintained by Client on its own
premises, and in any such event, if allowed by requesting authority, Fiserv
agrees to immediately notify Client of any such request.  Client agrees that Fiserv is authorized to
give all reports, summaries, or information contained in or derived from the
data or information in Fiserv’s possession relating to Client when formally
requested to do so by an authorized regulatory or government agency.  Client agrees to pay Fiserv its then-current
rates for all research work resulting from regulatory requests, government
agency requests, and legal process requests such as subpoena or search warrant,
whether issued during or after the term of this Agreement.


 


(b) Compliance
with Regulatory Requirements.  Client
agrees to comply with regulatory and legal requirements applicable to Client’s
receipt of Fiserv Services, which may include without limitation:


 


(i) submitting a copy of
this Agreement to the appropriate regulatory agencies prior to the date
Services commence;


(ii) providing
adequate notice to the appropriate regulatory agencies of the termination of
this Agreement or any material changes in Services;


(iii) retaining
records of its accounts as required by regulatory authorities;


(iv) obtaining and
maintaining, at its own expense, any Fidelity Bond required by any regulatory
or governmental agency; and


(v) Fiserv and
Client will maintain, at their own expense, such casualty and business
interruption insurance coverage for loss of records from fire, disaster, or
other causes, and taking such precautions regarding the same, as may be
required by regulatory authorities.


 


7.  Warranties and Indemnification. (a) By
Fiserv.


 


(i) Fiserv
represents and warrants that: (A) no contractual obligations exist that
would prevent Fiserv from entering into this Agreement; (B) Fiserv has the
requisite authority to execute, deliver, and perform Fiserv’s obligations under
this Agreement; (C) Services will conform to the specifications set forth
in the Exhibits; (D) Fiserv will perform Client’s work accurately provided
that Client supplies accurate data and information, and follows the procedures
described in all Fiserv documentation and notices; (E) Fiserv personnel
will exercise due care in provision of Services; (F) functionality
provided by the Fiserv System will enable Client to comply in all material
respects with Federal regulations generally applicable to Fiserv’s clients in
the industry in which the functionality is intended to be used; and (G) Fiserv
will comply with Federal regulations applicable to Fiserv’s performance of its
obligations under this Agreement.


(ii) Fiserv shall
defend and indemnify Client and hold it harmless against any and all amounts
payable by Client under any judgment, verdict, court order or settlement
entered or agreed in any third party claim or action that alleges that the
Fiserv System infringes a United States patent, copyright, or other proprietary
right of such third party (“Infringement
Claim”).  Client agrees to
notify Fiserv promptly of any Infringement Claim and grants Fiserv the sole
right to control the defense and disposition of all Infringement Claims.  Client shall provide Fiserv with reasonable
cooperation and assistance in the defense of any Infringement Claim. The
obligations set forth in this paragraph are Fiserv’s entire liability and
Client’s sole and exclusive remedy for any Infringement Claim.


 


THE WARRANTIES STATED
ABOVE AND IN THE EXHIBITS, IF ANY, ARE LIMITED WARRANTIES AND ARE THE ONLY
WARRANTIES MADE BY FISERV.  CLIENT
ACKNOWLEDGES THAT IT HAS INDEPENDENTLY EVALUATED THE FISERV SERVICES AND THEIR
APPLICATION TO CLIENT’S NEEDS.  FISERV
DOES NOT MAKE, AND CLIENT HEREBY EXPRESSLY WAIVES, ALL OTHER WARRANTIES,
INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
NON-INFRINGEMENT, AND FROM A COURSE OF DEALING OR USAGE OR TRADE.


 


(b) By Client.


 


(i)             Client
represents and warrants that: (A) no contractual obligations exist that
would prevent Client from entering into this Agreement; (B) it has
complied with all applicable regulatory requirements; and (C) it has
requisite authority to execute, deliver, and perform this Agreement.


 


(ii)  Client
shall indemnify and hold harmless Fiserv, its officers, directors, employees,
and affiliates against: (A) any claims or actions arising out of the use
by Client of the Fiserv System in a manner other than that provided in this
Agreement; and (B) any and all claims by third parties through Client
arising out of the performance and non-performance of Fiserv Services by
Fiserv, provided that the indemnity listed in clause (B) hereof
shall not preclude Client’s recovery of damages from Fiserv pursuant to the
terms and subject to the limitations of this Agreement.


 


6

















 


8.  Limitation of Liability.  IN NO EVENT SHALL FISERV BE LIABLE FOR LOSS
OF GOODWILL, OR FOR SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR TORT
DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, REGARDLESS OF WHETHER
SUCH CLAIM ARISES IN TORT OR IN CONTRACT. 
EXCEPT FOR CLAIMS RELATED TO PROPRIETARY RIGHTS OR PAYMENT OBLIGATIONS,
NEITHER PARTY MAY ASSERT ANY CLAIM AGAINST THE OTHER RELATED TO THIS
AGREEMENT MORE THAN 2 YEARS AFTER SUCH CLAIM ACCRUED.  FISERV’S AGGREGATE LIABILITY TO CLIENT OR ANY
THIRD PARTY FOR ANY AND ALL CLAIMS OR OBLIGATIONS RELATING TO THIS AGREEMENT
SHALL BE LIMITED TO THE TOTAL FEES PAID BY CLIENT TO FISERV FOR THE FISERV
SERVICE RESULTING IN SUCH LIABILITY IN THE 2 MONTH PERIOD PRECEDING THE DATE
THE CLAIM ACCRUED.


 


9.  Term and Termination.  (a) Term. The initial term of
this Agreement shall end 66 months following the date Fiserv Services are first
used by Client in live production. Unless written notice of non-renewal is
provided by either party at least 120 days prior to expiration of the initial
term or any renewal term, this Agreement shall automatically renew for
additional term(s) of 3 years.  This
Agreement shall be effective on the earlier of the Effective Date and the day
services are first provided to Client by Fiserv.


 


(b) Material
Breach; Failure to Pay.


 


(i) 
Either party may terminate this Agreement in the event of a material breach by
the other party not cured within 90 days following written notice stating, with
particularity and in reasonable detail, the nature of the claimed breach.


 


(ii) 
In the event any invoice remains unpaid by Client 30 days after due, Fiserv may
terminate this Agreement and/or Client’s access to and use of Fiserv Services.


 


(c) Remedies.  Remedies contained in this Section 9 are
cumulative and are in addition to the other rights and remedies available to
Fiserv under this Agreement, by law or otherwise.


 


(d) Defaults.  If Client:


 


(i) fails to cure
its material breach, or fails to pay amounts due, each as set forth in Section 9(b);


(ii) deconverts any
data or information from the Fiserv System either without Fiserv’s prior
written consent or in violation of this Agreement; or


(iii) commits an act
of bankruptcy or becomes the subject of any proceeding under the Bankruptcy
Code or becomes insolvent or if any substantial part of Client’s property
becomes subject to any levy, seizure, assignment, application, or sale for or
by any creditor or governmental agency;


 


then, in any such event,
Fiserv may, upon written notice, terminate this Agreement and be entitled to
recover from Client as liquidated damages an amount equal to the present value
of all payments remaining to be made hereunder for the remaining unused term of
this Agreement.  For purposes of the
preceding sentence, present value shall be computed using the “prime” rate (as
published in The  Wall Street
Journal) in effect at the date of termination and “all payments
remaining to be made” shall be calculated by multiplying the average monthly
invoices for the 6 months immediately preceding the date of termination by the
remaining months of the term.  Client
agrees to reimburse Fiserv for any expenses Fiserv may incur, including
reasonable attorneys’ fees, in taking any of the foregoing actions.


 


(e) Convenience;
Early Termination.  If Client
terminates this Agreement or reduces or terminates Fiserv Services for any
reason other than pursuant to Section 9(b)(i), Client shall pay a
termination fee based on the remaining unused term of this Agreement.  Such fee shall be determined by multiplying
the average of the monthly invoices for each Fiserv Service received by Client
during the 6-month period preceding the effective date of termination (or if no
monthly invoice has been received, the sum of the estimated monthly billing for
each Fiserv Service to be received hereunder) by 80% times the remaining months
of the term, plus any unamortized conversion fees or third party costs existing
on Fiserv’s books on the date of termination.


 


(f) Liquidated
Damages.  Client understands and agrees
that Fiserv losses incurred as a result of early termination of the Agreement
would be difficult or impossible to calculate as of the effective date of
termination since they will vary based on, among other things, the number of
clients using the Fiserv System on the date the Agreement terminates.  Accordingly, the amounts set forth in
Sections 9(d) and (e) represent Client’s agreement to pay and Fiserv’s
agreement to accept as liquidated damages (and not as a penalty) such amount
for any such termination.


 


10.  Dispute Resolution.  (a) Informal. Before initiating
arbitration or other legal action against the other relating to a dispute
herein, the parties agree to work in good faith to resolve disputes and claims
arising out of this Agreement.  To this
end, either party may request that each party designate an officer or other
management employee with authority to bind such party to meet to resolve the
dispute or claim.  If the dispute is not
resolved within 30 days of the commencement of informal efforts under this
paragraph, either party may pursue formal dispute resolution.  This paragraph will not apply if: (i) expiration
of the applicable time for bringing an action is imminent; or (ii) injunctive
or other equitable relief is necessary to protect a party’s proprietary rights.


 


7

















 


(b)  Arbitration.  Except with respect to disputes arising from
a misappropriation or misuse of either party’s proprietary rights, any dispute
or controversy arising out of this Agreement or its interpretation that is not
resolved under Section 10(a), may be submitted to and resolved by
arbitration under the then prevailing rules of Judicial Arbitration and
Mediation Services, Inc. (JAMS). A party seeking arbitration shall submit
written notice of its request for arbitration to the other party, setting forth
the specifics of the claim being made. If the parties agree to arbitrate such
dispute, a formal demand for arbitration shall be submitted to JAMS by such
requesting party.  The arbitration shall
be heard before an arbitrator mutually agreeable to the parties; provided, that
if the parties cannot agree on the choice of arbitrator within 10 days after
the parties agree to arbitrate, then the arbitration shall be heard by 3 arbitrators,
1 chosen by each party, and the third chosen by those 2 arbitrators.  The arbitrators will be selected from a panel
of persons having experience with and knowledge of information technology and
at least 1 of the arbitrators selected will be an attorney.  Discovery shall not be permitted.  A hearing on the merits of all claims for
which arbitration is sought by either party shall be commenced not later than 90
days from the date demand for arbitration is submitted to JAMS.  The arbitrator(s) must render a decision
within 10 days after the conclusion of such hearing.  Any award in such arbitration shall be final
and binding upon the parties and the judgment thereon may be entered in any
court of competent jurisdiction.


 


(c) Applicable
Law.  The arbitration shall be
governed by the United States Arbitration Act, 9 U.S.C. §§1–16 and the Federal Rules of
Evidence.  The arbitrators shall apply
the substantive law of the State of New York, without reference to provisions
relating to conflict of laws.  The arbitrators
shall not have the power to alter, modify, amend, add to, or subtract from any
term or provision of this Agreement, nor to grant any extension, renewal, or
continuance of this Agreement.  The
arbitrators shall have the authority to grant any legal remedy available had
the parties submitted the dispute to a judicial proceeding.


 


(d) Location.  If arbitration is used to resolve any
disputes between the parties, the proceedings to resolve any such dispute shall
be held in the headquarters city of the party receiving the request for
arbitration from the other party, specifically Atlanta, GA for Fiserv and
Charlotte, NC for Client.


 


11.  Audit. 
(a) General. Fiserv employs an internal auditor responsible
for ensuring the integrity of its processing environments and internal
controls.  In addition, Fiserv provides
for periodic independent audits of its operations, which shall include an annual SAS-70 Type II
audit to the extent required by law or regulation.  Fiserv shall provide Client with a copy of such
independent audit report of the Fiserv service center providing Services within
a reasonable time after its completion and shall charge each client a fee based
on the pro rata cost of such audit.  If
material deficiencies affecting the Services are noted in such audit report,
Fiserv will develop and implement an action plan to address and resolve any
such deficiencies within a commercially reasonable time at Fiserv’s expense.


 


(b) Regulatory.  As specifically permitted by law and
regulation, Fiserv acknowledges and agrees that regulators shall be permitted
to audit Fiserv’s performance under this Agreement at any time during Fiserv’s
normal business hours.


 


(c) Billing Records.  Upon Client’s reasonable request in writing,
Fiserv shall provide Client with documentation supporting the amounts invoiced
by Fiserv hereunder for the 12-month period preceding such Client request. If
such documentation reveals the amounts paid to Fiserv exceed the amounts
to which Fiserv is entitled and such amounts are independently verified, Fiserv
shall promptly remit the amount of such overpayment.


 


12.  General.  (a) Binding Agreement; Assignment.  This Agreement is binding upon the parties
and their respective successors and permitted assigns.  Neither this Agreement nor any interest may
be sold, assigned, transferred, pledged, or otherwise disposed of by Client,
whether pursuant to change of control, by operation of law or otherwise,
without Fiserv’s prior written consent, which shall not be unreasonably
withheld.  Client agrees that Fiserv may
subcontract any services to be performed hereunder; provided that any such
subcontractors shall be required to comply with all applicable terms and
conditions of this Agreement, and Fiserv shall remain primarily liable for the
performance of any such subcontractors.


 


(b) Entire
Agreement; Amendments.  This
Agreement, including its Exhibits and Appendices (if any), which are expressly
incorporated herein by reference, constitutes the complete and exclusive
statement of the agreement between the parties as to the subject matter hereof
and supersedes all previous agreements with respect thereto.  Each party hereby acknowledges that it has
not entered into this Agreement in reliance upon any representation made by the
other party not embodied herein. 
Modifications of this Agreement must be in writing and signed by duly
authorized representatives of the parties. 
In the event the provisions of any Exhibit conflict with the
provisions of this Agreement, this Agreement shall control unless the applicable
Exhibit expressly provides that its provisions control.


 


(c) Severability.  If any provision of this Agreement is held to
be unenforceable or invalid, the other provisions shall continue in full force
and effect.


 


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(d) Governing
Law; Jury Trial Waiver.  This
Agreement will be governed by the substantive laws of the State of New York,
without reference to provisions relating to conflict of laws.  The United Nations Convention on Contracts
for the International Sale of Goods shall not apply to this Agreement.  Both
parties agree to waive any right to have a jury participate in the resolution
of any dispute or claim between the parties or any of their respective
affiliates arising under this Agreement.


 


(e) Force Majeure.  Neither party shall be responsible for delays
or failures in performance resulting from acts of God, acts of civil or
military authority, fire, flood, strikes, war, epidemics, pandemics, shortage
of power, or other acts or causes reasonably beyond the control of that party.
The party experiencing the force majeure event agrees to give the other party
notice promptly following the occurrence of a force majeure event, and to use
diligent efforts to re-commence performance as promptly as commercially
practicable.


 


(f) Notices.  Any written notice required or permitted to
be given hereunder shall be given by: (i) Registered or Certified Mail,
Return Receipt Requested, postage prepaid; (ii) confirmed facsimile; or (iii) nationally
recognized overnight courier service to the other party at the addresses listed
on the cover page or to such other address or person as a party may
designate in writing.  All such notices
shall be effective upon receipt.


 


(g) No Waiver.  The failure of either party to insist on
strict performance of any of the provisions hereunder shall not be construed as
the waiver of any subsequent default of a similar nature.


 


(h) Prevailing
Party.  The prevailing party in any
arbitration, suit, or action brought against the other party to enforce the
terms of this Agreement or any rights or obligations hereunder, shall be
entitled to receive its reasonable costs, expenses, and attorneys’ fees of
bringing such arbitration, suit, or action.


 


(i) Survival.  All rights and obligations of the parties
under this Agreement that, by their nature, do not terminate with the
expiration or termination of this Agreement shall survive the expiration or
termination of this Agreement.


 


(j) Exclusivity.  Client agrees that Fiserv shall be the sole
and exclusive provider of the services that are the subject matter of this
Agreement.  For purposes of the
foregoing, the term “Client” shall include Client affiliates.  Client agrees not to enter into an agreement
with any other entity to provide these services (or similar services), and not
to perform these services (or similar services) for itself, during the term of
this Agreement without Fiserv’s prior written consent, which shall not be
unreasonably withheld.  If Client
acquires another entity, the exclusivity provided to Fiserv hereunder shall
take effect with respect to such acquired entity as soon as practicable after
expiration or earlier termination of such acquired entity’s previously existing
arrangement for these services.  If
Client is acquired by another entity, the exclusivity provided to Fiserv
hereunder shall apply with respect to the level or volume of services provided
immediately prior to the signing of the definitive acquisition agreement
relating to such acquisition and shall continue with respect to the level or
volume of such services until any termination or expiration of this Agreement.


 


(k) Recruitment
of Employees. Client and Fiserv shall not, without the other’s prior
written consent, directly or indirectly, solicit for employment or hire any
Restricted Employee (as defined herein) while such person is employed by Client
or Fiserv and for the 12-month period starting on the earlier of: (i) termination
of such Restricted Employee’s employment, or (ii) termination or
expiration of this Agreement.  “Restricted Employee” means any former
or current employee of either Fiserv or Client or their affiliates that the
other becames aware of or came into contact with during Fiserv’s provision of
services under this Agreement.


 


(l) Publicity.  Client and Fiserv shall have the right to
make general references about each other and the type of services being
provided hereunder to third parties, such as auditors, regulators, financial
analysts, and prospective customers and clients, provided that in so doing
Client or Fiserv does not breach Section 3 of this Agreement.  The parties may mutually agree on a press
release relating to the execution of this Agreement.  In conjunction with this, the party
initiating such release shall give the other party a reasonable opportunity to
review and comment on the content thereof prior to its release.


 


(m) Independent
Contractors.  Client and Fiserv
expressly agree they are acting as independent contractors and under no
circumstances shall any of the employees of one party be deemed the employees
of the other for any purpose.  This
Agreement shall not be construed as authority for either party to act for the
other party in any agency or other capacity, or to make commitments of any kind
for the account of or on behalf of the other except as expressly authorized
herein.


 


(n)  No Third
Party Beneficiaries.  No third party
shall be deemed to be an intended or unintended third party beneficiary of this
Agreement.


 


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IN WITNESS WHEREOF, the
parties have caused this Agreement to be executed by their duly authorized
representatives as of the Effective Date.


 


	
  For Client:

  	
   

  	
  For Fiserv:

  
	
   

  	
   

  	
   

  
	
  Coastal Carolina
  National Bank, In organization

  	
   

  	
  Fiserv
  Solutions, Inc.

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
  Ms. Holly
  Schreiber

  	
   

  	
  Name:

  	
  Jerry C. Tull

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
  CFO

  	
   

  	
  Title:

  	
  EVP – ITI Outsourcing,
  Southeast Region

  
									



 


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